R. v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0241V
T.R., Chief Special Master Corcoran
Petitioner, Filed: December 4, 2020
v. Order; Motion for Redaction; Special
Processing Unit (SPU); Influenza
SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury
HUMAN SERVICES, Related to Vaccine Administration
(SIRVA)
Respondent.
Carol Gallagher, Somers Point, NJ, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
ORDER DENYING MOTION TO REDACT1
On February 12, 2019, T.R.2 filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine
Act”). Petitioner alleges that she suffered an injury which meets the Table definition for
shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza
vaccine on October 2, 2017. Petition at 1, 2, 3. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1
Because this unpublished Order contains a reasoned explanation for the action in this case, I intend to
post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). In light of the undersigned’s conclusion below, I intend to post this Order with a redacted
caption. To the extent Petitioner would seek further redaction, in accordance with Vaccine Rule 18(b),
Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which
would constitute an unwarranted invasion of privacy.
2
Pursuant to my Order granting in part Petitioner’s August 24, 2020 redaction request regarding information
in the Fact Ruling I issued in this case on August 10, 2020, Petitioner’s name has been redacted in the
caption of this case to reflect her initials only. Thus, this order will confirm to the amended caption and will
reflect Petitioner’s initials only.
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National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
On October 13, 2020, I rendered a decision awarding damages in the amount
proffered by Respondent to which Petitioner agreed. Decision Awarding Damages
(“Damages Decision”), ECF No. 44. Two days thereafter, Petitioner filed a motion to
redact the amount of damages awarded in this case. ECF No. 45. For the reasons stated
below, I hereby deny Petitioner’s motion to redact.
I. Legal Standard
I have previously discussed in other orders the Vaccine Act’s treatment of requests
to redact Program decisions and rulings. See generally K.L. v. Sec’y of Health & Human
Servs., No. 12-0312V, 2015 WL 11387761, at *2-4 (Fed. Cl. Spec. Mstr. Feb. 27, 2015),
mot. for review den’d,123 Fed. Cl. 497 (2015) (denying a request to redact petitioner’s
name and description of illnesses). Generally, information provided in vaccine
proceedings may not be disclosed without the written consent of the party providing the
information. Section 12(d)(4)(A); Vaccine Rule 18(a). The Act requires disclosure of the
decisions of the special masters or the court but provides for redaction of certain
categories of information – “medical files and similar files” – but only if the disclosure of
such information “would constitute a clearly unwarranted invasion of privacy.” Section
12(d)(4)(B); accord. Vaccine Rule 18(b).
The Vaccine Rules allows the initials of a minor to be used in the petition’s caption
when filed. Vaccine Rule 16(b). Although adult petitioners’ names are not afforded this
automatic protection, they may be redacted if the movant establishes proper grounds for
so doing. See generally W.C. v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440, 460-
61 (Fed. Cl. 2011) aff’d, 704 F.3d 1352 (Fed. Cir. 2013) (analogizing Vaccine Act’s privacy
concerns to treatment of similar issues under the Freedom of Information Act, claimant’s
name was properly subject to redaction from decision); but see Langland v. Sec’y of
Health & Human Servs., No. 07-0036V, 2011 WL 802695, at *7-8 (Fed. Cl. Spec. Mstr.
Feb. 3, 2011), mot. for rev. denied on non-relevant grounds, 109 Fed. Cl. 421 (2013)
(petitioners not entitled to redaction of names from decision where they failed to establish
compelling grounds for so doing). There is a notable public interest in knowing the
vaccination and medical information related to a petitioner’s injury but no public interest
in knowing a petitioner’s name. A.K. v. Sec’y of Health & Human Servs., No. 09-0605V,
2013 WL 322918, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2013).
W.C. and Langland stand as two somewhat-opposed interpretations of how strict
the standard for obtaining redaction should be. Langland adopts a more stringent
approach, while W.C. emphasizes a balancing test that weighs a petitioner’s privacy
interests against “the public purpose of the Vaccine Act.” W.C.,100 Fed. Cl. at 460-61;
K.L., 2015 WL 11387761, at *2-3. In either case, however, a petitioner needs to make
some showing to justify the relief of redaction; redaction is not available simply at a
petitioner’s beck and call. W.C., 100 Fed. Cl. at 460 (balancing of interests favors
redaction “where an objection [to disclosure] is made on reasonable grounds”) (emphasis
2
added). I have permitted redaction in cases where such a specialized showing was made
without reconciling these two competing standards or choosing one over the other. See,
e.g., K.L. v. Sec’y of Health & Human Servs., No. 12-0312V, 2015 WL 11882259 (Fed.
Cl. Spec. Mstr. Oct. 30, 2015) (granting petitioner’s second request to redact only her
name to initials which was accompanied by additional information regarding the potential
harm she may suffer regarding her employment).
II. Analysis
In her motion, Petitioner argues that she “believes, not to redact this information,
is an invasion of her privacy.” Motion to Redact at 1. She includes a copy of the damages
decision with a redacted amount awarded. Id. at 2-3. In addition to providing no evidence,
information, or argument to support her redaction request, Petitioner utilizes a lower
standard than the standard for redaction set forth in the Vaccine Act. As stated in the
previous section, to qualify for redaction in vaccine cases, a petitioner must show that
disclosure “would constitute a clearly unwarranted invasion of privacy.” Section
12(d)(4)(B) (emphasis added); accord. Vaccine Rule 18(b). Respondent did not file a
response.
“Judgments and the amounts awarded in damages routinely are disclosed in other
judicial decisions . . . [and] Section 12(d)(3)(A) requires a special master's decision to
state whether compensation is to be awarded and the amount of such compensation.
Castagna v. Sec’y of Health& Human Servs., No. 99-411V, 2011 WL 4348135, at *12
(Fed. Cl. Spec. Mstr. Ayg. 25, 2011). As this specific instruction demonstrates, there is a
strong public interest in knowing the amount of compensation awarded in vaccine cases.
This information informs future claimants of the amounts previously awarded and thus,
instructs them on the amounts they should seek.
Petitioner seeks to redact information which is necessary to inform the public of
the factors to be considered when a determination regarding the appropriate amount of
damages is made. Because of the public interest in disclosure, such information would
not be appropriate for redaction under the Vaccine Act. See W.C., 100 Fed. Cl. at 461.
III. Conclusion
For the reasons set forth above, I hereby determine that Petitioner has not
established that redaction of the amount awarded in the Damages Decision I issued on
October 13, 2020 is appropriate under Section 12((d)(4)(B) of the Vaccine Act. However,
when posted, the Damages Decision will reflect the amended caption which contains
Petitioner’s initials only. This change should afford Petitioner some protection.
3
Petitioner’s Motion to Redact filed on October 15, 2020 at ECF No. 45 is
DENIED.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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